Letter from the Society of Editors to
Mr J Woodcock, Police Leadership and Powers Unit, Home Office

CONSULTATION: LEGISLATION
COVERING SEARCHINGOF PREMISES

Thank you for inviting the Society's comments
on the consultation paper.

As the Home Office is aware, the media is concerned
about the extent to which statutory and private bodies can obtain
or attempt to obtain access to journalistic material in circumstances
which can compromise protection of confidential sources, compromise
the safety of the journalists reporting events, reveal unpublished
material or provide grounds for preventing publication. Given
its past experience, the Society fears the way that the new powers
might be deployed against the media.

To explain why we have such anxieties, it may
be helpful to outline some of the recent representations and court
actions, which the Society and the media have pursued in attempts
to prevent new inroads into press freedom:

 new legislation, such as the Terrorism
Act 2000 and the RIP Act 2000 where we made clear our opposition
to the failure to provide express safeguards against enforcement
authorities' power to require information from journalists, access
to journalistic material and details of journalists' contacts
and confidential sources;

 on the scope of production orders
sought by the police and other law enforcement bodies';

 the readiness of some judicial authorities
to grant such orders, unless the media is prepared to pursue applications
for judicial review or other remedies to the highest courts including,
ultimately, the European Court of Human Rightsalthough
few legislative safeguards have resulted to improve protection
of freedom of expression and press freedom, including better protection
of sources;

 the ease with which even such legislative
safeguards as exist can be by-passed, for example, PACE seizure
safeguards are reduced in effectiveness by its provisions enabling
reliance on the fact that search warrants could have been authorised
by earlier legislation or the police are able to enter the premises
lawfully and then seize material without invoking the PACE production
order procedures and safeguards; and

The media has also been concerned by related
matters, which threaten press freedom, and which the consultation
paper's proposals might achieve by another, lawful route. The
media's recent and past problems include attempts by the Government,
law enforcement agencies and private bodies:

 to prevent publication by injunction
or seek other means to control media publication;

 to find out the identity of sources;

 to obtain access to and delivery
up of journalists' notes, background information, correspondence
and contact details;

 to force deletion of material from
media's computer systems;

 to obtain access to such media computer
systems to check that this had been done; and

 to obtain sight of articles prior
to publication, with the intention of pre-vetting material.

The Home Office will therefore understand our
main concern is the prevention of any changes to the powers of
police and other enforcement authorities under the wide range
of legislation mentioned in your paper which might, directly or
indirectly, intentionally or unintentionally, give those law enforcement
agencies new and wider powers against the media. Under the guise
of removing material from journalists' private premises or from
media offices in order to determine and separate out which material
can and cannot lawfully be seized, we anticipate that such powers
might well be exploited to gain access to journalistic material,
to discover sources, to read unpublished background material or
information which is about to be published and stop publication.

The Government has to recognise the restraints
upon freedom of expression posed by the vulnerability of the media
and its sources to the mere existence of any power for any act
of removal and the act of examination. The media has explained
on many occasions that inability to offer protection of confidentiality
of sources can inhibit the media's ability to investigate and
report and ultimately, freedom of expression. It is not simply
the execution of such action under the power, even if the material
is eventually deemed to be excluded or special procedure material
or cannot be used in evidence or for the purposes of the investigation.

It would be more appropriate, in the light of
the Human Rights Act 1998, to review whether there are grounds
for giving greater legal protection to journalistic material and
protection of sources and improve the legal safeguards against
state access to such material. For example, changes might be made
both to improve the PACE production order procedure and criteria
for grant of production orders and to limit the grounds on which
warrants can be granted for search and seizure of excluded or
special procedure material. Changes could also be introduced to
limit the seizure of such material once police are lawfully on
the premises (eg by extension of s19 protection to journalistic
material as well as material subject to legal professional privilege).
Improvements could be made which increase the scope for the media
to challenge the issue of warrants, which give access to journalistic
material. Such changes would be compatible with Articles 8 and
10 of the European Convention of Human Rights. We note that the
consultation paper does propose that all disputes about the seizure
of material should be determined through the application to a
circuit Judge. However, it does not make clear by whom the application
could be made and whether hearings will be inter partes. Even
more importantly, the paper does not state whether the Government
intends to remove rights of legal action and remedies currently
available to those who have been subjected to unlawful law enforcement
action. This would obviously be unwelcome.

On the specific proposals put forward in the
consultation paper, the Society's view is that it is vital that
the police should not lawfully be able to examine off or on the
premises any material which journalists or media companies claim
is legally privileged, excluded or special procedure material.

We doubt that there would be much scope for
the law enforcement authorities to dissent from the media's assertions,
nor that the effect of any such assertions in their dealings with
journalists or media companies or others would actually hamper
the performance of their law enforcement functions or exercise
of their law enforcement powers or investigations.

In the absence of such protection, we fear that
new statutory powers will be used to obtain access to material,
which cannot currently be obtained via production orders or search
warrants under PACE or other legislation.

We welcome the intention to include safeguards
and, in particular, that the consultation paper helpfully proposes
that the police could not conduct any examination of excluded
or special procedure material off the premises without consent
and recourse could be made to a circuit Judge in the event of
any difficulty.

However, it would be helpful to have some clarification.
First, we would like confirmation from the Home Office that introduction
of such a power would not in itself legitimise examination of
journalistic material, on private or company premises, which the
police are not currently lawfully entitled to carry out.

Second, we would like express confirmation that
the Home Office intends to exclude fully the media and journalistic
material from the scope of the new powers.

If there is to be any procedure for resolving
difficulties, then this ought not in itself directly or indirectly
legitimise enforcement authorities' access to material held by
journalists or by media companies, which currently would not be
lawfully available or obtainable.

Given that any dispute would largely concern
whether material was or was not legally privileged material or
journalistic material including excluded or special procedure
material, resort to an appropriate court might indeed be necessary
to prevent any access to or removal of, such privileged or journalistic
material. However, such protection would then only be effective
if the media received prior notification in good time, had the
right to be represented as a party to oppose any such application
for removal or seizure and had appropriate fast track rights to
appeal further or make applications for judicial review of any
order or decision whereby access or removal was sanctioned, prior
to any such removal or seizure. Such protection would be more
effective prior to any attempt to remove the material, whether
that removal was intended to enable consideration as to whether
the material could be seized or in dubious pursuit of an over
wide warrant. Law enforcement authorities ought to remain vulnerable
to actions for damages and trespass if they remove or formally
seize journalistic material, by warrant or otherwise, in circumstances
in which they had no right to remove or seize such journalistic
material

It is also important that any safeguards for
journalistic material and the media proposed by any new legislation
cannot be evaded simply by provisions which allow their bypass
in cases of urgency.

The Society opposes the creation of the power
proposed at point 3. It would allow the state and its enforcement
agencies in practice to by-pass easily such legal protection for
journalistic material as currently exists.

The consultation paper itself makes clear that
the proposal would give the police power to seize legally privileged,
excluded or special procedure material and all other material
that they would not otherwise have power to seize and retain.
They would only have to consider that the material could not be
reasonably separated from the material that they were entitled
to seize and retain, without damage to the evidential value or
integrity of that latter material. The consultation paper makes
clear that this is particularly relevant to inextricably linked
material held on computer media, if only to prove that material
was created upon a certain date.

The introduction of such a power would nullify
any current protection for journalistic material. It could virtually
enable law enforcement authorities to seize and retain freely
all journalists' notes and information covered by their investigations,
including any material that disclosed confidential sources, draft
stories being worked up, the legal advice given by their lawyers
and supporting material prior to and subsequent to publication,
access to the media's computer systems to data bases of unpublished
material, to text of stories prior to publication. In an extreme
case, there is little to prevent the seizure, prior to publication,
of the entire contents of special sections or supplements to appear
in the next edition of the newspaper, or entire text of other
publications, or programme which is to be broadcast.

Given previous attempts by the government and
police to obtain access to the media's material, we do not doubt
that the police and other state enforcement agencies would, in
practice, actually seek to use the new power as a means to discover
sources or view material prior to publication or might even seek
to prevent its publication directly or indirectly by seizure and
retention of the unpublished or untransmitted material itself
or supporting material which the media would require to substantiate
anything which is broadcast.

The existence of a dispute procedure, although
helpful, does not provide sufficient safeguards. There is no indication
within the paper as to what or when or by whom such applications
might be made. Any dispute procedure is unlikely to be effective
unless the subject of the proposed search, prior to search and
seizure, can activate or participate in it. Even then, its usefulness
for the media would be diminished if the only matters considered
by the Judge were to relate to questions concerning whether material
was or was not inextricably linked, without reference to freedom
of expression issues which meant that material should not be seized
by the police or other enforcement authorities where they had
no other legal power to obtain it and in contradiction of special
legal protection as has been conferred upon privileged or journalistic
material. There could well be additional problems because the
media would be forced to disclose that certain material existed
in order to resist the seizure either of that or related material.

Thus even if there is a procedure for resolving
disputes about the applicability of this new power by reference
to a circuit Judge, such an application procedure does not address
the real concern of the media about the creation of a new power
to enable lawful seizure and retention of journalistic or privileged
material which, under current legislation or at common-law, cannot
currently be lawfully obtained.

No convincing legal or other justification for
extension of the powers of a wide range of law enforcement authorities
in this way has really been put forward. The consultation paper
does not deal with this in any detail. The Society has previously
expressed its concerns about somewhat vague references to the
development of computer technology being put forward as the justification
for proposals for extension of law enforcement powers and consequent
specific and potentially severe inroads into citizens' rights
including those exercised by the media, not least those protected
by Articles 6, 8 and 10 of the Convention on Human Rights.

We do welcome the Home Office's recognition
of the potential impact of these proposals for the media and very
much appreciate the opportunity to put forward these preliminary
views for consideration. We would welcome any proposals, assurances
and clarification that can be given which would address some of
the concerns outlined above. It would be helpful if the Home Office
could ensure that the media and media organisations (including
organisations and companies not included on the original consultation
list) are involved in more detailed discussions on any developments,
including draft legislation, before any Bill is presented to Parliament.